Government Reorganization and Program Performance Improvement Act of 2005

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I would like to comment a bit on the nomination of Judge Roberts. I wish to make a political observation. This is certainly a political body, and the nomination process has politics to it. That is not a bad thing. That is to be expected.

From a Republican point of view, this is an easy vote. We are inclined to support a President when he is in power making a nomination. But that is not always the case, that every Republican votes for every nominee. I expect that will be the case here. Most of us on our side of the aisle are pleased with the nominee, someone of extraordinary intelligence and legal abilities and seems to be an all around good guy who has served his country well in every capacity that he has been called upon to serve. We will all vote en masse. It is an easy vote for us.

To our Democratic colleagues, it is not so easy. Any time you are in the minority, and the Court being an important part of American life and politics, there is a lot of pressure on my Democratic colleagues to say no for different reasons by special interest groups on the left. We certainly have them on the right. Our day will come. If there is ever a Democratic nominee, we will face the same pressure.

I would like to compliment my Democratic colleagues. Every one has taken the process seriously. There will be a healthy number of Democratic votes for Judge Roberts. To those who have decided to vote for him, history will judge you well. You have based your votes on the qualifications test. You have seen in Judge Roberts someone who loves the law more than politics. Over time, history will judge you well. One of the highlights of the Bush administration will be the selection of Judge Roberts to be the Chief Justice of the United States.

For those who vote no, to a person everyone has struggled with it, thought about it, cast your vote. Generally speaking, the debate in committee and in the Chamber has lived up to the best traditions of the Senate. A few months ago, we were at each other's throats, about to blow up the place. There is plenty of blame to go around, but we have sort of broken that cycle. We have had a confirmation process that is in the best tradition of the Senate. We will go forward, and I hope he gets a healthy number of votes. It looks as if he will.

One thing I wanted to take some time to discuss is some of the reasoning given to vote no and make a cautionary tale about some of the suggestions why a ``no'' vote would be appropriate. There seems to be some suggestion that if he does not have an allegiance to a particular line of cases, particularly the right of privacy cases centering around Roe v. Wade, that you can't vote for him. That one case or that line of legal reasoning is so important that without some commitment on his part to uphold Roe v. Wade or the concept of Roe v. Wade, a ``no'' vote would be in order. I would argue that could be applied on our side. Most of us are pro-life. I would say 90 percent of the Republican caucus is pro-life. Probably 90 percent of the Democratic caucus is pro-choice. The country is pretty evenly divided. If we have a litmus test about Roe v. Wade or any other case, that is not doing the judiciary a good service because you are putting a judge in a bad spot.

Senator Harkin mentioned the Americans with Disabilities Act, something he should be very proud of. He fought hard to make it part of law, and we are a better Nation for it. There are some cases involving the Americans with Disabilities Act that will come before the Court. Senator Harkin did not think that he could vote yes because he wasn't assured that Judge Roberts would uphold the Americans with Disabilities Act in a way that he felt comfortable with in that States have been exempted from the act. We are all dealing with that issue.

The only thing I can say about a guarantee with Judge Roberts, if you are a conservative and would like to see certain Court decisions reversed, if you are a liberal and would like to see certain decisions sustained, the one thing I can promise you about Judge Roberts is he is going to make his decision based on the facts, the briefs, the record in the particular case, and the arguments made by litigants. If he overturns a precedent of the Court, he will apply the four-part test that has been the historical analysis of how to overturn a standing precedent. He is going to do it in a businesslike fashion. He is going to apply the rule of law. If you are looking for an outcome- determinative judge, someone who is going

to see things your way before they get your vote, you are going to be disappointed. To be honest, the law is better off for those answers. He is not the only one to refuse to bargain his way on the Court.

Justice Marshall was asked by Senator McClellan: Do you subscribe to the philosophy expressed by a majority of the Court in Miranda?

That is a major league constitutional case in our Nation's history where police officers have to inform a criminal defendant of certain rights they possess under the Constitution. That was a big deal. When Justice Marshall was coming along, that case had not been long decided. He said: I cannot answer your question because there are many cases pending that are variations on Miranda that I will have to pass on if I were confirmed.

Senator McClellan: Do you disagree with the Miranda philosophy?

Justice Marshall: I am not saying whether I disagree or not, because I am going to be called to pass on it.

Senator McClellan: You cannot make any comment on any decision that has been made in the past?

Justice Marshall answered: I would say that on decisions that are certain to be reexamined in the Court, it would be improper for me to comment on them in advance.

I couldn't say it better. This idea that Judge Roberts has been evasive, that he will not give you a detailed answer of how he will decide the concept of the right of privacy or how he might rule on interstate commerce clause cases that will certainly come before the Court, he is doing exactly what Justice Marshall did when he was in the confirmation process. He was not going to bargain his way on the Court.

Justice Ginsburg gave a very famous quote: I am not going to give you hints, any previews, no advisory opinions about matters that I believe will be coming before the Court.

If that is your test, that you have to have a guarantee in your mind that a certain line of cases or a legal concept will be upheld or stricken down, Judge Roberts is never going to satisfy you. It is good for the country that he not try to do that, just as Justice Marshall avoided that dilemma.

This is a question by Senator Kohl to Justice Souter: What was your opinion in 1973 on Roe v. Wade?

Justice Souter: Well, with respect, Senator, I am going to ask you to let me draw the line there, because I do not think I could get into opinions of 1973.

Senator Leahy: You do not have the same sense, to whatever degree you consider privacy in Griswold settled--which is the ability to engage in birth control practices--to whatever extent that is, you do not have in your own mind the same sense of settlement on Roe v. Wade; is that correct?

Justice Souter: Well, with respect, sir, I think that is a question that I should not answer. Because I think to get into that kind of comparison is to start down the road on an analysis of one of the strands of thought upon which the Roe v. Wade decision either would or would not stand. So with respect, I will ask not to be asked to answer that question.

He said it better than I read it. Bottom line is, he is telling Senator Leahy and Senator Kohl that if you start asking me to compare one case with another that has viable legal concepts, that could be a foreshadowing of how I might rule on matters before the Court, and you are putting me in a bad spot and I like not to do that. I can talk about Griswold, but if you ask me to say am I settled about Roe v. Wade as I am Griswold, then you are basically getting a preview how I might rule on a Roe v. Wade-type scenario.

So the idea that Judge Roberts did not want to make such comparisons with the interstate commerce clause is not unknown to the confirmation process. Justice Souter did not want to go down that road with the right of privacy.

Judge Roberts was asked probing, hard, clever questions to try to get him to tip his hand. I think what he said was the right answer: I will follow the rule of law. There is a process of how to overturn a case. There is a process of how to decide a case. That process is, you look at the facts, you look at the record, you listen to the arguments of the litigants, and you don't prejudge. I think that will serve the country well.

The other concept that is coming into play is what burden does the nominee have, what deference should the Senate give to the President, what is the standard for confirmation. I have always believed that the idea that the President's nominee should be given deference by the Senate is a longstanding concept in our country. I am not the only one who believes that.

There is a lot of information out there from our Democratic friends who have gone down that same road and have come to the same conclusion. There are prominent law professors out there who have suggested that there is a presumption of a nomination by the President that the Senate should give great deference to the Presidential nominee and that our advise-and-consent role does not replace the judgment of the President but simply to see if the person is qualified, has the character and integrity and will wear the robe in the way that is consistent with being a judge and not turn it into power grab.

Professor Michael Gerhardt, who has advised our Democratic friends about the confirmation process established now and in the past, says:

The Constitution establishes a presumption of confirmation

that works to the advantage of the President and his nominee.

He also said:

The presumption of confirmation embodied in the

Constitution generally puts the onus on those interested in

impeding a nomination to mobilize opposition to it.

So the general idea that the President should be given deference, in Professor Gerhardt's opinion, is accepted in terms of the practice of the Senate.

Senator Biden, on past nominations, has said: First, as a Member of the Senate, I am not choosing a nominee for the Court. That is the prerogative of the President of the United States and we, Members of the Senate, are simply reviewing the decision he has made. Second: Our review, I believe, must operate within certain limits. We are attempting to answer some of the following questions: First, does the nominee have the intellectual capacity, confidence, and temperament to be a Supreme Court Justice? Second, is the nominee of good moral character and free of conflict of interest that would compromise her ability--in this case it was Justice Ginsburg--to faithfully and objectively perform her role as a member of the Supreme Court? Third, will the nominee faithfully uphold the laws and Constitution of the United States of America? We are not attempting to determine whether the nominee will address with all of us--being the Senate--every pressing social or legal issue of the day. Indeed, if that were the test, no one would pass this committee, much less the full Senate.

I could not agree with Senator Biden more. If that is the test, we are OK. If it becomes some subjective test where you have to adopt our view of a particular line of legal reasoning, then I think you have undermined the role of the President, I think you put the Judiciary at a great disadvantage, and I think you will be starting down a road that will not pay great dividends for the Senate.

I argue that whatever votes you cast, let's not create standards that will come back to haunt the judiciary. Let's not put people in a bind, in trying to get on the Court, by making decisions or answering questions that will compromise their integrity and violate their judicial ethics to get votes.

I do not think anybody is intentionally trying to do that, but there are some disturbing comments about what the standard should be. There have been a couple of occasions on the Judiciary Committee where people have looked at Judge Roberts and said: Convince me, the burden is on you to convince me you will not do the following or you will do the following. I don't think that is helpful.

There have been some occasions in the committee where people have acknowledged the great intellect of Judge Roberts. His preparation for the job is not in question. I said in committee: If you question his intellect, people are going to question yours. He is a genius. There is no way of getting around that. He is one of the greatest legal minds in the history of the country, and I think he will be a historic choice by the President.

People have suggested: I don't know if he has the real-world experience; I know about your brain, but I don't

know about your heart. I suggest it is dangerous for us in the Senate to begin judging other people's hearts. That gets to be a slippery slope.

Senator Wyden's statement, I thought, was dead on point. He understands the deference the body gives to the President. He pointed out, in fact, that Justice Ginsburg and Justice Breyer, two Clinton nominees, received 87 votes and 96 votes, respectively. If you start applying heart tests, I can tell you that gets to be so subjective and so political, and I think it is dangerous for the judiciary and not healthy for the Senate.

One of the issues Justice Ginsburg wrote about was the idea that prostitution should be a legal activity because to restrict women from engaging in prostitution is basically restricting a woman's right to engage in commerce.

You can agree or disagree, but from my point of view, looking at the world as I know it to be as a former prosecutor and former defense attorney who has had some experience in criminal law, if I am using the heart test or the real-world experience test, I would argue that from the experiences I have seen as a criminal defense lawyer and as a criminal prosecutor, that prostitution is hell for women; that if you really understood the life of a prostitute, it would not be a good business endeavor to uphold. It would be something we would want to deter.

That is my view based on life as I know it, having been involved in the criminal law business for 20-something years.

She said she supported the idea of Federal funding for abortion. If you wanted to try to question someone's heart from a pro-life perspective, I think it would be pretty tough to take taxpayers' dollars and use them for a procedure that millions of Americans find morally wrong.

So if we start going down the road of whether we believe a person before us has the right heart or the right real-world experiences, then you are taking the objective qualification, intellect, and character test, not an ideologue--which I think is an appropriate thing--and you are beginning to put subjective elements in it that will not be good for the judiciary and will not be good for the Senate. I can assure you, if we started looking at those type of tests for Justice Ginsburg or Justice Breyer, who was a Democratic staffer, if we started looking at their philosophy or trying to judge their heart or having their value system equate with ours to the point we feel comfortable, then they would not have gotten nearly the votes they did because it is clear to me that not too long ago Republicans, during the Clinton administration, overlooked all the differences they had with Ginsburg and voted for her 96 to 3 and overlooked all the differences they had with Justice Breyer and gave him 87 votes. It is clear to me that Democrats and President Bush 1's administration overlooked all the differences they had with Justice Scalia, and he got 98 votes.

It has been mentioned that the President has politicized this process, and there have been all kinds of veiled and direct threats about the next nominee: If you pick so and so, you are going to get a fight. If you pick Priscilla Owen, if you pick Janice Rogers Brown, you are going to get a fight, bringing back the specter of the filibuster.

What did the President do when he ran in his campaign? He talked about the Supreme Court and how important it was to him. He said, basically: If I am the President of the United States, on my watch, I am going to nominate well-qualified, strict constructionists to the Court with no litmus test, who will interpret the law and not become legislators themselves. He showed praise and admiration for Scalia and Thomas.

I would argue that something is wrong with the Senate if they can vote for someone 98 to 0 and say, If you pick someone like him, they are out of the mainstream and desiring a filibuster. How can you go from 98 to 0, someone similar to the person a decade later, and you filibuster? I would argue that if you do that, it is more about politics than it is about qualifications.

I hope we don't do that because the one thing I can assure you, knowing the President reasonably well, is that he is going to fulfill his campaign promise. He is going to send over to this body a well- qualified, strict constructionist, and to expect anything else, you ignored the last two elections. We are not going to sit on the sidelines and watch the election be overturned because of political pressure from the left. That is not going to happen.

I do expect the President to listen, as he did before he nominated Judge Roberts. I expect him to consult, as he did before he nominated Judge Roberts. I was very pleased and proud of his pick. I am encouraging the President to listen to our Democratic colleagues, listen to us all. But the most encouragement I could give the President is: Fulfill your campaign promise. Do what you said you would do when you ran for President. Send us over a well-qualified, strict constructionist conservative with no litmus test attached. If you do that, then you will have done a good service for the American people because you got elected twice telling them what you are going to do.

I have about 5 minutes, and I will let my other colleagues speak.

There were a couple of other comments about concerns with this nominee. It goes back to the memos. This nominee worked for the Reagan administration. He was in his midtwenties, and that has gotten to be a bad thing. Working for Ronald Reagan, I think, is a good thing. Justice Breyer was a Democratic staffer. No one held that against him. He worked for the Democratic side of the aisle in the Senate, and I don't remember anyone suggesting that was a bad thing.

Presidents pick people they know and with whom they are comfortable. Clinton was comfortable with Ginsburg, the executive general council for the ACLU, someone we would not have picked. He was comfortable with Justice Breyer, a former Democratic staffer, someone this President would not pick. This President picked someone who worked for his dad, President Bush 1, and Ronald Reagan.

There is an argument out there that adopting the Reagan position on extending the Civil Rights Act in toto, without a change, that would lead to a reverse discrimination test called ``proportionality'' and is out of the mainstream. Ronald Reagan won 49 States. If you can win 49 States and be out of the mainstream, I would argue the person saying you are out of the mainstream is out of the mainstream. If you picked someone similar to Scalia and that would justify a filibuster and the guy got 98 votes, there is a disconnect going on here.

One of the memos that is in question is a memo that Judge Roberts wrote about the Reagan administration's decision to grant amnesty, for lack of a better word, to illegal aliens in this country. He was writing a memo to suggest how the President should respond to an inquiry by Spanish Today, a Latino, Hispanic newspaper. He talked about the idea that it would be well received in the Hispanic community to grant amnesty. And he said to the effect that Spanish Today would be pleased that we are trying to grant legal status to their illegal amigos.

Somehow that one phrase has been suggested that this young man, working for the Reagan administration, committed some kind of a wrong that would deny him the ability to be fairly considered for the Supreme Court 20-something years later. I argue, No. 1, that if you read his writings in terms of what he was talking about, it was not meant to be slanderous, it was not meant to be a derogatory remark--he answered the question fully--that it was not meant to be that way at all. That was a commonly used term in the White House, the term ``amigos,'' and he made a correct observation: that certain Hispanic groups did welcome President Reagan's decision.

Bottom line is, if we are going to take a phrase that a person wrote when they were 26, and that is going to be a reason to vote no, woe be to anybody else coming before this committee. I would not want that to be the standard for me.

He never apologized because he did not think he had anything to apologize about. So this is much ado, in my opinion, about nothing. You have read his writings. He used Latin, French, and Spanish terms all over the place. He is kind of a witty guy. You may not like his sense of humor, but I think it is given sometimes in that vein. The idea about, you know, more homemakers becoming lawyers, who said we need more homemakers than lawyers--and I

think a lot of people agree with that, and his wife happens to be an attorney, by the way--taking these phrases out of context and not looking at life in total is not fair. Not one person came before this body or the committee to say Judge Roberts has lived his life in any way, shape, or form to demean any group in America or individual. It is quite the opposite. He has received praise from everybody he has worked with on both sides of the aisle because he is basically a very good man. So I hope we will not make that the standard in the future.

Final thoughts. The vote is not in question in terms of confirmation. The process is in question. And that to me is as important as the vote total. The President is going to get another pick. That is the way it has happened. He has had a lot of things happen on his watch historic in nature. Whatever you think about President Bush, whether you like him or not, he has had to deal with some major league events. Let me tell you, some will go down good and not so good in history. That is the life of a President. But one thing I can say for certain is that his decision to make John Roberts Chief Justice of the U.S. Supreme Court will go down well in history. It will be one of the greatest things he has done as President of the United States because he has picked one of the most uniquely qualified men in American history to serve on a Court that needs all the unity it can find, and this guy will be a consensus builder. The next one is coming and it is coming soon. There is all kind of jockeying already about what the President should do and what he should not do. I hope and pray we will remember the best traditions of the Senate, that we will listen to the Joe Bidens of the past, when he informed us that our role is to give deference to the Presidential nominee, look at their character, intelligence, and qualifications; that we will remember what Senator Kennedy said about Justice Marshall: it is not your job, we shouldn't hold someone's political philosophy against them. We should look at who they are and what kind of judge they would be, would they be fair.

So as the next pick is about to be made, the Senate can fight if we want to or we can recognize that elections matter, we can judge the nominees based on their qualifications, integrity, and character, whether they are going to wear the robe in some improper fashion, or we can start putting political tests on the Presidency that will come back to haunt everybody and every party. If you want someone such as O'Connor--President Clinton did not think 1 minute about replacing Justice White with Justice Ginsburg. No one asked him to think about that. This idea that you have to have an ideological match is something new. What is old and stood the test of time is that Presidents get to pick once they win, and our job is to make sure they pick wisely in terms of character, integrity, and qualification. And if we will stick to that test and not substitute our political philosophy for that of the President and not require a political allegiance of the nominee to our way of thinking about a particular line of cases or a particular concept in law, but judge the entire person, we will have served the country well. If we get into the mud and start fighting each other over the second pick, because some people don't like how the election turned out, then we will set a trend that will come back to haunt this body, haunt all future Presidents, and we will be worse off as a nation.

With that, I am going to end with the idea I am optimistic that we will not go down that road, we will give the next nominee the respect and deference this nominee has, and we will vote our conscience, and the vote will come and the vote will go. And the worst thing we could do is politicize the judiciary any more than it has been politicized. If you are selected to be on the Supreme Court, there will be millions of dollars to run you down and destroy your life, and that is going to happen on both sides of the aisle if we do not watch it. The best thing the Senate can do is use this opportunity to stand up to those people who want to run down somebody and ruin their life unfairly, because our day will come as Republicans. If we can unite around the idea we are not going to let special interest groups take over the Senate, the country will be stronger.

With that, I yield the floor.

I was aware of that. I was asking if there are any Democrats who would object to my starting my comments at this point.

Mr. President, before the Senator from Arkansas goes, I do not have prepared remarks, but to try to put her a little bit at ease about these decisions that we have to make on the Supreme Court because they are very important decisions, I would reflect on some history.

For instance, I probably had the same concerns about President Clinton and Justice Breyer and Justice Ginsburg when I voted for them. Regarding the political positions that Justice Ginsburg stood for in her life before coming to be a judge, I wouldn't agree with many of them. But she was totally qualified to be on the Supreme Court, and I voted for her based upon the proposition that Alexander Hamilton said that the purpose of our activities here of confirming people for the courts is basically two. Maybe there is some historian around who will say Grassley has it all wrong, but I think it was, No. 1, to make sure that people who were not qualified did not get on the courts. In other words, only qualified people get appointed to the courts and that political hacks do not get appointed to the courts.

That is somebody who was around when the Constitution was written, and the Federalist Papers, stating those things about our role. So I have a fairly flexible point of view of how I ought to look at people, even those with whom I disagree.

In regard to what the Senator said about hoping what President Bush would do, or what he has done in the past in regard to these appointments, I would want you to look at that as I looked at President Clinton being elected in 1992. I don't know whether court appointments were an issue in that campaign as they were in 2000 or 2004, but I assume that he had a mandate to appoint whom he wanted appointed, as long as they were not political hacks and as long as they were qualified. So I gave President Clinton that leeway.

I am hoping that even more so with President Bush, since he made very clear to the people of this country that he was going to appoint strict constructionists and people who were not going to legislate from the bench. You may not like what he is doing, but he

is doing exactly what he said he was going to do, and I hope that would enhance credibility to the American people of at least one more politician who keeps his word when he is in office. He appoints whom he said he was going to appoint, and that is what he is doing here. It should not be any surprise, and I hope he would be respected for doing that and have leeway in doing that, as long as they are not political hacks but they are qualified.

The other one is, over a long period of time, to maybe take away some worry about whether or not we have to be concerned about this specific person doing exactly what he said he was going to do. I would refer to Judge Souter. I was thinking Judge Souter was maybe not exactly whom I would want on the Court, but he would be pretty close to it. During that debate--I think it was in committee and not on the floor--there was one of the Senators on your side, who I have named but I will not name him this time, who made this point about Justice Souter--that he didn't have respect for the right to privacy and then was a threat to Roe v. Wade.

Here is one Republican who thought maybe Souter would work out OK, from my point of view. There was a Democrat over there who thought Souter would be a threat to Roe V. Wade. We were both wrong.

So it is difficult to predict what people are going to do down the road, so you have to look at are they qualified. I don't have any doubt but that Judge Souter is qualified to be on the Court. But I misjudged him and this Democratic Senator also misjudged him.

The other one is, if you worry about Republicans, to look at what they might appoint versus what Democrats might appoint, and you end up getting something from a Republican you don't like. I assume you are more to the liberal end than the conservative, and you have to stop to think that a Republican appointed John Paul Stevens and a Republican appointed Justice Souter, two of the four most liberal people on the Supreme Court.

To some extent, you get what you want from a Republican President as much as you do from a Democratic President because the other two were appointed by President Clinton.

Then, also, from a historical standpoint, time brings a great deal of balance to the Court. Justices change their views sometimes over a period of 25 or 30 years on the Court. Or Presidents that you might be thinking are appointing conservatives end up appointing liberals--they end up being liberals on the Supreme Court.

History is going to bring balance to the Court. Right now, if Justice Roberts is appointed, we will have four liberals. I don't need to name them. Everyone understands who they are. You are going to have three conservatives: Roberts, Scalia and Thomas. And then you are going to have two moderates, Kennedy and O'Connor--O'Connor for a little while now. So you have some balance, but it is tilted a little bit more toward the liberal side than it is to the conservative side.

Maybe, when President Bush gets done with this next nominee, there will be even more balance, four conservatives and four liberals and one moderate, Justice Kennedy left as a moderate.

Then I keep thinking about what we ought to do if we want to bring balance to the Court, and I hear more about that on your side than I do on this side: Let's just say that Justice Ginsburg, obviously a woman, and Justice O'Connor is obviously a woman; we have two women, so maybe we ought to have a woman appointed to the Supreme Court.

The liberal women of America have Justice Ginsburg as voting the way that they think Justices ought to vote. Maybe the conservative women of America are entitled to a seat on the Supreme Court. We might be fortunate enough to get appointed a very qualified woman who is also a strict constructionist. Then we would have one liberal woman and we would have one conservative woman on the Supreme Court, and we have even more balance brought to the Court.

So you see history kind of takes care of these things. I hope 25 years from now--and you are a lot younger than I am and you will be around here 25 years from now--that you are satisfied that history will take care of all these problems that are brought up about what the Supreme Court might do 10 or 15 years from now.

She said she is glad I am her chairman. She means she and I serve on the Finance Committee together. I don't want to mislead the audience, I am not chairman of the Judiciary Committee.

Mr. President, I will proceed, then, with the remarks I wanted to make in regard to my support for Judge John Roberts to be the next Chief Justice of the United States. I do support that nomination. Judge Roberts has earned our vote. He understands the proper role of a judge in our constitutional democracy. He understands the courts are not superlegislatures.

He understands that I am elected to be a legislator, to make law. If people do not like the law I make, they can vote me out of office. But if Judge Roberts makes law, with a lifetime appointment to the Court, he can never be voted out of office unless he is impeached. He understands that the courts are not responsible for addressing every social ill or injustice that, in fact, ought to be settled through law and public policy. He understands that courts do not create new rights. Rather, courts protect those liberties and rights guaranteed by our Constitution and the laws appropriately enacted by Congress and State legislatures.

He also understands that there are a great deal--infinitesimal-- number of unenumerated rights out there for you and me that are reserved under our Constitution to the States and to the people thereof.

Judge Roberts said this to the committee:

Judges and Justices are servants of the law, not the other

way around. Judges are like umpires. Umpires don't make

rules, they apply them.

Judge Roberts underscores that ``judges and Justices'' make sure everybody plays by the rules. But these rules limiting the power of Government over the people apply to the courts as well. He made it very clear to us. In Judge Roberts' view, ``Not everybody went to a ball game to see the umpire.''

That is the right approach to the job of a Supreme Court Justice.

Judge Roberts has demonstrated, particularly to the committee, that he understands the limited nature of judges, and especially the humility and the modesty necessary to be the kind of judge we need on our highest Court. Judge Roberts believes that courts may act only to decide cases and controversies. That is exactly what it says in article III of the Constitution. So judges cannot address every unaddressed and unremedied social problem.

Judge Roberts said:

Judges have to decide hard questions when they come up in

the context of a particular case. That is their obligation.

But they have to decide those questions according to the rule

of law, not their own social preferences, not their policy

views, not their personal preferences but according to the

rule of law.

That is what he told us in committee.

Judge Roberts also said:

We don't turn a matter over to a judge because we want his

view about what the best idea is, what the best solution is.

It is because we want him or her to apply the law. Let me say

parenthetically, as I would interpret that, not to make law,

but to apply the law.

He went on to say:

They--

Meaning judges--

are constrained when they do that. They are constrained by

the words that I choose to

enact into law in interpreting that law. They are constrained

by the words of the Constitution. They are constrained by the

precedents of the other judges that became part of the rule

of law that they must apply.

This answer he gave to the committee demonstrates that Judge Roberts believes in and will exercise judicial restraint on the bench. This principle of judicial restraint is a cornerstone of our constitutional system, best defined by the tenth amendment--that that power is not specifically given to the Federal Government or reserved to the States and the people thereof. This is the defining characteristic of the judiciary in our Government of divided powers.

In particular, I was pleased when Judge Roberts told the committee that he has no agenda to bring to the bench. I want to remind you what Judge Roberts said in a very short opening statement. To quote a little bit of it:

I come before the committee with no agenda. I have no

platform. Judges are not politicians who can promise to do

certain things in exchange for votes. I have no agenda but I

do have a commitment. If I am confirmed, I will confront

every case with an open mind. I will fully and fairly analyze

the legal arguments that are presented. I will be open to the

considered views of my colleagues on the bench, and I will

decide every case based on the record according to the rule

of law, without fear or favor, to the best of my ability, and

I will remember that it's my job to call the balls and

strikes and not to pitch or bat.

I was also pleased when Judge Roberts told the committee that:

I had someone ask me in this process: Are you going to be

on the side of the little guy? And you obviously want to give

an immediate answer. But as you reflect on it, if the

Constitution says that the little guy should win, the little

guy is going to win in court before me. But if the

Constitution says that the big guy should win, well, then the

big guy is going to win because my obligation is to the

Constitution. That's my oath.

So, obviously, Judge Roberts will strive to uphold the Constitution and the laws of the United States, regardless of his personal beliefs.

I want to take a little time to commend Chairman Specter for conducting a fair and respectful hearing. I am pleased we are looking at a timely up-or-down vote on this nominee. Obviously, so many people for so long were inclined to filibuster judges, and to have this important person--this ``well-qualified'' person--go through in the tradition of the Senate doing what the Constitution says to do, give its advice and consent with a 51-vote margin, is something that surprises me to some extent after the last 2 years. But to have it happen gives me a very warm feeling toward all my colleagues for having that up-or-down vote.

Article II of the Constitution puts the appointment power in the executive, and says the President gets to nominate the person of his choice to the Supreme Court. And President Bush in an unprecedented manner consulted with more than 70 Senators on both sides of the aisle before sending up Judge Roberts' nomination. President Bush didn't have to do that under the Constitution. But it was wise for him to so do.

Even though I have been a member of the Judiciary Committee for my 25th year, I don't remember a President who has talked to me about who I think ought to be appointed. I wouldn't want to say over 25 years that I couldn't have forgotten some Republican or Democrat talking to me about it, but I don't remember. I was consulted by this President on the type of person I thought should be nominated. I was even offered to give names, if I wanted to. And I took advantage of giving my advice to him.

At the hearing which Senator Specter conducted, Senators were able to ask numerous questions of the nominee over a period of 3 days. The Judiciary Committee also reviewed thousands of documents, opinions, and other information produced by the White House.

Throughout the process, Judge Roberts was patient; he was candid and forthcoming in his responses.

Judge Roberts clearly has been the most scrutinized judicial nominee to come before the Senate in my years on the committee. No nominee in these years before the committee has testified as thoroughly and comprehensively on his judicial philosophy as Judge Roberts. I have gone through 10 Supreme Court hearings. Judge Roberts' command of the law and the facts of cases was without precedent.

Still, some of my colleagues objected to Judge Roberts' refusal to review the results of cases. But his refusal was absolutely the right thing to do. Judge Roberts wisely resisted the bait to confuse results and reasoning when it comes to the judicial function. No doubt this greatly frustrated some of my colleagues, particularly on the other side of the aisle, who wanted to impose litmus tests on all judicial nominees, who want to extract commitments from nominees to rule in a predetermined way, their political way, regardless of the facts of the law.

If they can't get that, if they can't get allegiance to their personal political predilection, and work with their far-left activist groups, well, then it seems as though that nominee isn't worthy of their vote.

It stymies me why it would be wrong for the President of the United States to ask a nominee if they support Roe v. Wade or not--and Judge Roberts under oath answered the question of whether the President discussed it with him, and the President didn't discuss it with him-- but a lot of Senators were saying, or at least implying, that it would be wrong for the President to get that sort of litmus test type of commitment from a nominee, but some of those very same Senators found it not in the least bothering their conscience to ask him exactly that same question and expect an answer from him.

Frankly, I have no way of knowing how Judge Roberts will rule on the hot-button issues in the next 25 years. I acknowledge that he might rule in ways that will disappoint me in some of the same ways that I was disappointed by Justice O'Connor, Justice Kennedy, and Justice Souter in the years since they have been on the Court. These were all nominees I supported through the Supreme Court confirmation process, but no Senator has a right to impose his or her particular litmus test on an otherwise qualified nominee.

I voted, as I said earlier to the Senator from Arkansas, for Ruth Bader Ginsburg, as did almost all of my Republican colleagues, because we acknowledge the President's--that was President Clinton--primacy in the appointments to the Supreme Court, even where we knew this Justice Ginsburg had a different philosophy. I knew then that I shared very little in terms of political, social, or philosophical views of Ruth Bader Ginsburg. As everyone knows now, Judge Ginsburg was then affiliated very closely with extremely liberal views--views a majority of the American public would deem way out of the mainstream. But the Judiciary Committee evaluated her as a fully competent person to serve on the Supreme Court. And then because of that, because we were doing what we should constitutionally be doing, we voted her in 96 to 3.

As I said in committee, it seems there is a whole new ball game out here when we have an individual with the competence, intelligence, and brilliance of Judge Roberts who nonetheless is going to get a lot of Democrats voting against him. This says far more about the Democrats today than it does about the nominee John Roberts.

The truth is that at another time Judge Roberts would have been confirmed 100 to 0, and properly so, as Justice Scalia 20 years ago was approved almost unanimously. Today's Democrats have made the needle's eye for approving so small, so impossibly tiny, even the Supreme Court giants of the past could never pass through it.

The reality is that today's Democrat Party seems to be beholden to far left pressure groups who know their radical agenda for America can only be implemented by judicial fiat. I am sad to say that the other party has expressed an unquestionable loyalty to what is probably their base but a base out of touch with the vast majority of Americans.

When we finally cast our vote on the nomination of Judge Roberts, most Senate Democrats will show they will be voting in lockstep with the demands of their leftwing interest groups regardless of how qualified, brilliant, or worthy the nominee is.

On the other hand, I have to admit since I prepared these remarks, I have heard speeches by two Members of that party within the last hour who I did not think would come to the conclusion of voting for him, who have said within the last hour they were going to vote for Judge Roberts. I am pleased with that.

But we still have a situation that has been demonstrated over the last 3 years, up until May of this year when some judges finally got through for the circuits, that judges were being held up for very partisan reasons. The other party and their outside groups have their own agenda. They want the Supreme Court or courts, generally, to implement it, particularly things they might not be able to get through the Congress of the United States.

My colleagues like to say they voted for more judges appointed by Republican Presidents than judges appointed by Democrat Presidents. But my friends on the other side of the aisle who say this, are not telling the whole picture. Sure, they voted for a lot of Republican nominees during my time in the Senate. More Republican nominees have been sent up for consideration than Democrat nominees. The point is, the Democrats have stuck like glue to their outside interest groups through thick and thin and voted in lockstep against more Republican-appointed judges than Republicans have voted against Democrat-appointed judges. That has been by a landslide margin.

The fact is, a majority of the Democrats voted in lockstep against Judge Bork and Justice Thomas. A majority of Democrats voted in lockstep against Justice Rehnquist when he was elevated to Chief Justice.

On the other hand, Republicans voted overwhelmingly for President Clinton's two liberal nominees, Justices Ginsburg and Breyer. So I think my party has shown it is not wedded to the single-issue interest groups.

My friends on the other side of the aisle are weaving revisionist history saying the more conservative Justices of the Court, such as Scalia and Thomas, are the ones who are really the judicial activists on the bench. But we all know this is just not true.

The American people know what is really going on. The liberal leftwing interest groups and Senate enablers, as my friend, Senator Hatch, has sometimes called them, want to win in the courtroom what they cannot win in the ballot box. The Democrats have taken this to a new level. They are already talking about filibustering the next nominee, and we do not even know who that is yet. They are really the ones who are judicial activists.

We should take care because the independence of the Federal judiciary is at stake. Our entire framework of government as we know it and was intended by the Framers is at stake.

We are told the Democrats are laying the groundwork for the next Supreme Court nominee by sending a message, I presume, to the President and those of this party. These messages are an argument that Justice O'Connor must be replaced by a liberal or moderate, and that individual should be a woman or another minority, claiming the balance of the Court must be maintained at all costs.

I hope I made this clear in my comments that Senator Lincoln listened to so closely, and that was that history takes care of a lot of this. Of the four liberals on the Supreme Court today, two were appointed by Republicans, President Ford and President Bush 1. The moderates, O'Connor and Kennedy, were appointed by a Republican President. So we do not know what we get. I wish we did. I wish we could predict 25 years from now, but we can't.

The Democrats did not expect President Clinton to appoint a moderate judge to replace Justice Byron White. I remind my colleagues that Justice White was one of the two Justices who dissented in Roe v. Wade. We Republicans did not say: Well, Justice White is retiring so we need to make sure we appoint another person like Justice White to the Supreme Court. President Clinton wasn't elected to appoint people the Republicans wanted.

I ask unanimous consent for 3 or 4 more minutes.

So we get appointments such as Ruth Bader Ginsburg, totally qualified to be on the Court. I voted for her; Justice Breyer, totally qualified to be on the Court, I voted for him. We did not try to second-guess President Clinton.

Clearly, Justice Ginsburg does not share Justice White's philosophy. Yet Senate Republicans overwhelmingly confirmed her, with only three ``nay'' votes. The fact is, the President picked people they thought would be good Justices.

The bottom line is we should not be thinking of liberal, conservative, or moderate judges--men or women for that matter. We ought to think of who is qualified. If you are qualified for the job, you ought to get the vote of the Senate. Someone who has the right temperament and integrity on the job is also a requirement. But these liberals I voted for have had that as well.

Judge Roberts recognized this problem, politicizing the Federal bench, and in particular the Supreme Court, when some of my colleagues on the other side of the aisle attempted to pin him down on certain litmus test questions at his nomination hearings. Judge Roberts said:

[I]t is a very serious threat to the independence and

integrity of the court to politicize them. I think that is

not a good development to regard the courts as simply an

extension of the political process. That's not what they are.

Judge Roberts went on to say:

Judges go on the bench and they apply and decide cases

according to judicial process, not on the basis of promises

made earlier to get elected and promises made earlier to get

confirmed. That's inconsistent with the independence and

integrity of the Supreme Court.

I am in total agreement with that statement. So when Judge Roberts testifies his oath is to uphold the Constitution and the laws of the United States and that he won't impose a political or social agenda in his decisionmaking, that is what we need to hear. That is because the bottom line is, irrespective of Judge Roberts' impressive resume, brilliant intellect, and personal integrity, he would not be qualified to be a Supreme Court Justice unless he was truly willing and able to subject himself to that judicial restraint.

Judge Roberts says his obligation is to the Constitution and that is his oath. He says he will not impose his personal views on the people but will make decisions in an impartial manner in accordance with the Constitution, the laws enacted by Congress. He says he will be modest in his judging and exercise judicial restraint. He says he will respect the limited role of a judge in society. That is the kind of Justice we need to see on the Supreme Court. That is the kind of Justice the Senate should support.

I yield the floor.

Mr. President, I rise to speak on the nomination of John Roberts to be Chief Justice of the United States. I speak about this at an exciting time for this country. This will be the 17th person to occupy this position. It is a rarity for this position to become available. I love this Nation.

I love the institutions of this Nation. More, I love the people of this Nation.

I know, as well, that John Roberts does too. I know from the time I have spent talking with him and hearing his comments, that he too loves this Nation. He loves the people of this Nation and he looks forward to its greater greatness into the future. I am looking forward to his service.

When the Frenchman, Alexis de Tocqueville, whom many of us quote often, visited the United States in the 1830s, he wondered how Americans could maintain a genuine representative government when the liberty they enjoyed would suggest that the average citizen would be a purely self-interested individual. If we were to give them pure liberty, they would, he believed, just pursue self-interests. So how could you have a government that would govern when everybody is focused on their self-interest?

He was amazed to find what kept Americans joined together and with their government was what he called ``habits of the heart.'' By this, he meant that citizens often were concerned about the greater public good, along with their own narrow self-interests. So, while they had their own self-interests, their hearts pulled them to a greater public good and these ``habits of the heart.'' That led to their participation in political discourse, to be involved in their communities, and take care of their fellow citizens.

Throughout our history, our ``habits of the heart'' have informed and driven America's conscience. The people knew the colonial system stifled freedom, so they rejected the British monarchy and ultimately ratified the U.S. Constitution. The people knew in their hearts that slavery was wrong, and that terrible institution was rightly brought to an end. It was difficult, and it was at a terrible cost. And the people knew that the legal promise of equal protection was empty without racial justice.

Throughout the consideration of Judge Roberts' nomination, many of my colleagues have spoken about a particular issue that I want to discuss, and its impact and relationship to that habit of the heart. This particular issue, which is at the center of the debate for Judge Roberts, is the right to privacy. They also have demanded that Judge Roberts adhere in a few cherished cases to stare decisis, that is, the practice of letting a precedent stand for the sake of stability in the law, regardless of whether the precedent reflects the correct interpretation of the law.

What is striking about this discussion is that it has not been illuminated by what Tocqueville saw in us long ago--those ``habits of the heart'' that make Americans aware of the greater good and of the justice due their fellows citizens.

To explain what I mean, consider Judge Roberts' confirmation hearing. During the hearing, Judiciary Committee members spent a lot of time discussing section 2 of the Voting Rights Act. It was often mentioned that it was critical for Congress to enact a so-called effects test in order to eradicate discrimination in voting practices. Under this test, a neutrally worded law was to be struck down if it diluted the political preferences of minority voters, even if that effect was intentional. If there was an effect where it had a negative impact on voting for minority groups, it was to be thrown out, it was to be declared unconstitutional, it was a bad effect.

It seems to me there is a broader lesson to be learned by discussion of an effects test. And I agree with that effects test in the Voting Rights Act; it is absolutely right. It seems to me there is a broader lesson to be learned about the effects test.

During the debate on Judge Roberts, some have argued about whether he will vote to affirm or reject abstract legal principles, without really considering what the real effects of these principles have been. And when it comes to the right to privacy and stare decisis, the discussion of effects has been obscured, if not ignored altogether.

The standard argument we have heard is that cases such as Roe v. Wade and Planned Parenthood v. Casey have established the right to privacy, and that such cases should be maintained for the sake of ``stability'' and ``settled expectations.'' Yet both our heads and our hearts tell us that these decisions deserve much more searching scrutiny. This is in part because we rightly resist insulated courts short-circuiting political debates. But it is also because we rightly believe that these decisions and doctrines have all-too-real effects.

And so it is with the right to privacy. Some of my colleagues have argued that this right, which has been interpreted to guarantee a right to abortion, has been beneficial to women. They argue the right to abortion has ``freed'' them to pursue such goals as full participation in the workforce. But there are certain other effects of this right which should be identified, if we are to have an honest appraisal of what this right has accomplished, and what it has wrought.

I have pointed out repeatedly that in the wake of Roe, 40 million children have been aborted in America--40 million souls who could have brightened our existence and made their contribution to the habits of the American heart. But even this general result of abortion's cold reality masks the specific costs of the Supreme Court's constitutional misadventure in Roe. For it has become clear in recent years that it is the so-called least among us, the disabled, who have paid a disproportionate price as a result of the right established in Roe and other cases.

Let me give you some examples. According to recent numbers released in November of 2004 by the American College of Obstetricians and Gynecologists, over 80 percent of pregnancies involving a child with Down Syndrome were terminated ``by choice'' in the 1980s and 1990s--80 percent. Again, that is ``by choice.'' According to the Centers for Disease Control and Prevention, out of over 55,000 pregnant women screened, 83 percent of unborn children are terminated after testing positive for cystic fibrosis. Finally, the CDC noted that for spina bifida and similar neural tube defects, at least 80 percent of pregnancies ``were electively terminated.''

These particular numbers are astonishing, and not just because they represent the wholesale destruction of generations of unborn disabled children. What makes them painfully ironic is that this trend persists even in a society that has extended significant protections to the disabled once they are born.

A prime example, of course, is the Americans with Disabilities Act of 1990, which was an historic achievement. I applaud my colleagues, Senators Kennedy and Harkin, and my predecessor, Senator Bob Dole, for their important role in passing this milestone legislation.

Deeming the protection of the disabled a ``human rights issue,'' the first President Bush called the ADA ``the world's first comprehensive declaration of equality for people with disabilities.'' His successor, President Clinton, stated on the ninth anniversary of the passage of the ADA that ``For too long, we have encumbered disabled Americans with paternalistic policies that prevent them from reaching their potential. But now, we endeavor to empower individuals with the tools they need to achieve their dreams.'' I would note that to dream, they have to be alive.

In enacting the ADA, the Congress explicitly made the following finding, upon which one of the protections of the ADA was based:

People with disabilities, as a group, occupy an inferior

status in our society, and are severely disadvantaged

socially, vocationally, economically, and educationally.

In worthy fulfillment of the promise of the Declaration of Independence that ``all Men are created equal,'' the Congress issued in the ADA a ``clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.'' There were not qualifiers for it. They did not say at certain places or points of time in life. They said this is a ``clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,'' period.

To enforce this mandate, Congress explicitly ``invoke[d] the sweep of congressional authority, including the power to enforce the Fourteenth Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.''

The ADA establishes extensive protections for persons with disabilities. It

protects them when they seek employment; it protects them when they attempt to use government services; it protects them when they wish to use public transportation; it protects them even when they want to book a hotel room or seek access to a restaurant; it even protects the hearing-impaired and speech-impaired who want to share in the benefits of the revolution in telecommunications.

Similarly, 30 years ago, Congress passed the Individuals with Disabilities Education Act, IDEA. In the act, Congress found, among other things, that ``[d]isability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society.''

These are worthy and grand statements of inclusion and support to people with disabilities.

The ADA and the IDEA demonstrate that the disabled need and deserve the protection of the law in order to fulfill their potential.

Yet ironically, it is when the disabled are most vulnerable--indeed, completely voiceless--that our society leaves them completely unprotected. The laws offer no shelter to them before they are born. In this dangerous legal vacuum has stepped the Supreme Court. In 1973, just 2 years before enactment of the IDEA, the Court invented a right to abortion--a right which has proven lethal to legions of disabled Americans. And in a cruel jurisprudential twist, it was none other than the 14th Amendment, which Congress invoked in enacting the ADA, upon which the Supreme Court based the right to abortion.

What does it say about our society that we refuse to acknowledge the damaging effects of Roe on the disabled? Where does the path lead when we ignore the habits of our hearts, which demand that we extend our compassion to these Americans? What have we become when we have jettisoned the unalienable right to life Thomas Jefferson found self- evident in favor of the moral and legal quicksand of Roe?

The sad experiences of other countries suggest a few unsettling answers to these questions. For example, China recently criminalized abortion for the purpose of sex selection. The reason for this is revealed by figures--an effects test, if you will--showing that 119 boys are born in China for every 100 girls--119 boys for every 100 girls. This gender gap can be attributed to the combination of the Communist government's one-child policy with a culture that often values sons more than daughters. So millions of parents have aborted baby girls hoping to have a boy next time. If current trends continue, some experts say that China could have as many as 40 million men who can't find spouses by the year 2020.

India faces a similar problem. Sex determination has been a serious problem there since the 1970s, when amniocentesis began to be widely used to determine the sex of the unborn child. A 1985 survey revealed that 90 percent of amniocentesis centers were involved in sex determination, with nearly 96 percent of female fetuses aborted. In response, India outlawed fetal sex determination for sex selection 8 years ago, but prenatal sex determination through ultrasonography continues.

Indeed, the situation has become so dire that the Indian Medical Association has appealed to the conscience of that country--the habit of the heart of that nation--and the world to save baby girls from abortion. The association says that up to 2 million baby girls still are killed by abortion every year. A former President of the Indian Medical Association told the BBC that the situation has led to a demographic imbalance of up to 50 million fewer women in the country than would be expected.

This selective destruction of the unborn in other countries has a grim predecessor in American history: the eugenics movement. As Edwin Black has noted in a book called ``War on the Weak'':

[T]he eugenics movement slowly constructed a national

bureaucratic and juridical infrastructure to cleanse America

of its ``unfit.'' Specious intelligence tests, colloquially

known as IQ tests, were invented to justify incarceration of

a group labeled ``feebleminded.'' Often the so-called

feebleminded were just shy, too good-natured to be taken

seriously, or simply spoke the wrong language or were the

wrong color. Mandatory sterilization laws were enacted in

some twenty-seven states to prevent targeted individuals from

reproducing more of their kind. Marriage prohibition laws

proliferated throughout the country to stop race mixing.

Collusive litigation was taken to the U.S. Supreme Court,

which sanctified eugenics and its tactics. The goal was to

immediately sterilize fourteen million people in the United

States and millions more worldwide--the ``lower tenth''--and

then continuously eradicate the remaining lowest tenth until

only a pure Nordic super race remained. Ultimately, some

60,000 Americans were coercively sterilized and the total is

probably much higher.

The source of the word ``eugenics'' is very interesting. The very word was coined by Francis Galton, the nephew of Charles Darwin. Galton believed that ``what nature does blindly, slowly, and ruthlessly, man may do providently, quickly, and kindly.'' In 1883, Galton created a new term for this manmade ordering of life. As Black describes it, Galton ``scrawled Greek letters on a hand-sized scrap of paper, and next to them put two English fragments he would join into one. The Greek word for `well' was abutted to the Greek word for `born' . . . and the word he wrote on that small piece of paper was `eugenics'.'' Well born.

Among the strongest proponents of eugenics was Margaret Sanger. Sanger advocated for the mass sterilization of so-called ``defectives'' and the wholesale incarceration of the so-called ``unfit.'' She particularly supported the sterilization plan of those people she deemed unfit; she believed this plan would lead to the ``salvation of American civilization.'' She also argued for sterilization of those who were ``irresponsible and reckless,'' including those ``whose religious scruples prevent their exercising control over their numbers.'' For these people, she contended that ``there is no doubt in the minds of all thinking people that the procreation of this group should be stopped.'' She repeatedly referred to the lower classes as human waste not worthy of assistance, proudly promoting the views that these ``weeds'' should be ``exterminated.''

Sanger went on to found a group that came to be known as Planned Parenthood, the very same organization which successfully prevailed upon the Supreme Court to reaffirm Roe v. Wade in the 1992 case of Planned Parenthood v. Casey. Sanger's legacy still resonates today.

Dr. John Harris of Manchester University in England has offered a slightly milder formulation than that of Sanger. He has stated that:

Eugenics is the attempt to create fine healthy children,

and that's everyone's ambition. . . . We're not trying to do

this through killing people or eliminating individuals, we're

trying to do this by making choices about which people will

exist in the future.

Given the experience of other countries with abortion; given our own experience with abortion of the disabled; and given the natural repugnance most people have with the eugenics movement, I would suggest to my colleagues that Roe and other related cases simply flunk the ``effects test'' we have long applied in the context of voting and other rights. These cases have carved millions of voices out of our civic core and cannot withstand moral scrutiny, much less an honest legal examination.

The right to privacy as it has been extended has not only weakened our legal culture; it has made us poorer as a people. It is impossible not to recognize the significant contributions made by those with disabilities who do survive; they help to bring out the humanity in each of us, and we are better for it. Every time I see one of these beautiful children, I am reminded of what joy they bring, and what joy their counterparts might have brought.

How can we, as a nation, stand for the principle of equality, that we are all blessed to be alive, that we are all capable of great success regardless of disability, and that we are a compassionate society, when our laws blithely allow the elective termination of more than 80 percent of a vulnerable population. It is incomprehensible.

Numerous men, women, and children with disabilities have overcome adversity and achieved great successes in their lives. I would like to take a few minutes to share a few of their stories.

Here is a picture of Abby Loy. I met her last week when she visited my office. She is a beautiful young girl and

she has Down Syndrome. She does modeling and was recently featured in a book called ``Common Threads,'' which illustrates the numerous accomplishments achieved by people with Down Syndrome. Abby and her mother came to Capitol Hill from Michigan last week to promote awareness of disability issues and to illustrate Abby's wonderful life journey.

Look at this beautiful child. This note is from her parents:

When Abby was born, physicians and social workers informed

our family of all of her potential limitations,

developmentally and physically. When we asked what Abby's

education path might look like, we were told that she would

attend special classrooms. Abby has been successfully

educated with support in all regular education classes and

continues to grow. We felt Abby would prove herself to be

much more capable than others believed . . . It continues

today.

Again, that note is from her parents.

It is a tough choice when a mother or a spouse gets a diagnosis in utero that a child has Down Syndrome; it is agonizing. I know from my own thoughts when we were having our children. Yet I ask people to look at the beauty of the child and embrace her. If they can't, there are other groups and individuals that will. It is a tough choice, but it is a child, a beautiful child, a child that can accomplish much.

I want to show another example. This one is Samuel. I have had Samuel in to testify before a subcommittee I chaired last year. I am rather partial to the name Samuel myself. In this picture he is catching fish. It doesn't look like a very big fish and the fish doesn't look too happy, but Samuel is sure happy. He has spina bifida, which most medical professionals call a devastating birth defect. These are his parents' words:

Though we were devastated by learning that our unborn son

had spina bifida, we wanted to do all we could to improve the

quality of his life. Ending it was never an option. Let's see

what we can do to improve it. At 21 weeks gestation, Samuel

had fetal repair of his spina bifida lesion. Today he is a 5-

year old kindergartner. He is imaginative, funny, and

compassionate. He can read, swim, and catch even the

fastest lizard. He has touched many lives. We are so

thankful for him and are eager to see what great things he

will accomplish.

Normally, about 80 percent of children diagnosed with spina bifida are terminated and killed in utero.

I have a final example. This is a lady who looks at her Down Syndrome as an ``up syndrome'' and has started ``Up with Down Syndrome''. She has served on President Clinton's Committee on Mental Retardation. She served three terms from 1994 to 2000, one of the first two members with a disability to be appointed to this committee. Her name is Ann M. Forts. She goes around the country and talks with individuals about what she can do. The second paragraph of a letter she sent to me is particularly striking:

As I think about my active and happy life on the upside of

my Down Syndrome dis``ability'', I find it extremely

frightening to think of how vastly different my life would

have been if my parents had taken that ill-conceived

professional advice when I was born.

In other words, to put her in some form of an institution rather than bringing her home.

These are inspirations to all of us. And if you need further inspiration, just go talk to Jimmy, the elevator operator right outside the door of the Senate Chamber, who brightens all of our lives.

They will not be defeated by their disabilities, and we celebrate them for that. But think about the many more like them, think about the more than 80 percent of the beautiful capable children, similar to Abby, Ann, Jimmy, and Samuel, who are never given a chance because their lives are terminated before they are born.

We should not use bland phrases such as ``right to privacy'' or ``stare decisis'' to disguise the issue at stake with Judge Roberts' nomination to be Chief Justice of the United States. We must be truthful with the American people, as well as ourselves, and admit that this confirmation is, at its root, about the most fundamental and basic right of all: the right to life.

As Americans, it is our duty to protect and defend the weakest among us. The duty is not only mandated by our laws but nurtured by our conscience and our habits of the heart.

With the recent enactment of the bipartisan partial-birth abortion ban and bills like the Pre-Natally Diagnosed Awareness Act, which I sponsored with Senator Kennedy, we have begun heading in the right direction. However there is still significant work to be done.

There is still a glaring inconsistency between the life that we deem to be worthy of protection under the Constitution, and the life which we do not. The value placed on certain persons and stages of life seems to be arbitrarily assigned. The Constitution clearly states in the 5th and 14th Amendments that ``no person'' shall be deprived of ``life, liberty, or property without due process of law.''

``No person.'' What does that mean? Does it extend to an unborn child? Is an unborn child a person or merely a piece of property? A person is entitled to inalienable rights established under the Constitution and laws of the United States. Property can be done with as its master chooses. I posed this question to Judge Roberts during his confirmation hearing. Because this issue may come before the Court at some point in the near future, he declined to answer directly. But the persistence of this issue simply underlines the importance of each Supreme Court vacancy.

I will support the nomination of John Roberts to be Chief Justice of the United States. I will do so based in part on his stellar credentials for the position, but also on my hope and my prayer that he understands what is at stake when the Supreme Court interprets the people's Constitution--not a sterile debate over arcane legal principles and Latin doctrines but the very habits of our hearts.

I yield the floor.

Mr. President, I ask unanimous consent that the next hour under majority control be allocated as follows: 20 minutes for Senator Cornyn, 5 minutes for Senator Cochran, 15 minutes for Senator Bennett, and 20 minutes for Senator Allen.

I thank the Chair.

Mr. President, I am going to talk about the nominee that we presently have before the Senate, Judge John Roberts, in a moment. First, let me express my concerns about a Washington Post story that was published today entitled ``Filibuster Showdown Looms in Senate.'' The curious thing about this article is it does not talk about the nominee for Chief Justice of the United States, John Roberts, the nominee that is actually pending before the Senate. Rather, what this article talks about is the next nominee of the President of the United States to fill the seat of Justice Sandra Day O'Connor.

I am afraid it is perhaps a sign of the times in which we are living and perhaps a sign of the contentiousness with which the nomination for a vacancy on the Supreme Court has met in the Senate that some of my colleagues are already talking about a filibuster of the next nominee of the President when that nominee has not yet been named. I think it takes partisanship to a new level, to threaten to block an up-or-down vote on the Senate floor when we do not even know who that person is yet and, indeed, some apparently cannot conceive of the possibility that this President would nominate someone on whom they would at least allow an up-or-down vote. We are not talking about a Senator not following their conscience but talking about Senators, a minority in the Senate prohibiting a bipartisan majority from casting an up-or-down vote without even knowing who that nominee is going to be.

We ask that nominees for the courts not prejudge cases that will come before them. I would think that we should also ask Senators not to prejudge nominees who have not even been nominated by the President yet. Whomever the President nominates should be entitled to an up-or- down vote on the Senate floor. We are not a country that believes in the tyranny of the minority but, rather, we believe in a fair process and an up-or-down vote and majority rule. That is all we would ask for this yet-to-be-named nominee.

But now let me go to the business at hand and say that I will vote to confirm Judge John G. Roberts as the next Chief Justice of the United States. Before I explain why I am going to vote for his confirmation, I first want to explain the reasons why I am not.

First, I am not voting for his confirmation because he told us how he would rule on cases or issues that might come before the Supreme Court. Some of my colleagues have said that they will not vote to confirm Judge Roberts because they are not certain how he would rule on cases or issues that will come before the Court. They are not certain whether he will vote in favor of abortion rights, for example. They are not certain that he will vote in favor of racial preferences and quotas. They are not certain whether he will vote to give the Federal Government unlimited regulatory power to the exclusion of State and local government. I am not certain how Judge Roberts is going to vote on these issues either, but although my constituents are as concerned and as interested in these issues as anyone, I am not going to refuse to vote for this nominee on that basis. Judges are not politicians. They do not come to Washington to run on a political platform. They do not say: Vote for me, and I will put a chicken in every pot. They are not supposed to come before the Senate and promise to vote this way or that way on a matter that will come before them. Certainly, I understand as well as anyone why the American people, and Members of the Senate included, are curious about how Judge Roberts is likely to rule on future cases. I am curious about that, too. But sometimes we have to put our curiosity aside for a greater good. We do not want to create a situation where a Justice cannot win confirmation to the Supreme Court unless he pledges to vote this way or that way on certain hot-button issues of the day. Judges are supposed to be impartial, and they are supposed to be independent. That is why they have lifetime tenure once confirmed. Judges cannot be either impartial or independent if they are forced to make promises to the Senate of how they will vote in order to get confirmed.

Some of my colleagues have said they simply cannot or will not put promises to politicians aside for this greater good of independence and impartiality. One of my colleagues says she wants to know who will be the winners on certain issues when Judge Roberts is on the Court. I can tell you who the winners will be. The winners are going to be the parties whose positions are supported by the Constitution and laws of the United States of America. Judge Roberts eloquently explained this during his confirmation hearing. He was asked whether he would rule in favor of the little guy. His answer was that if the Constitution and laws of the United States supported the little guy's position, the little guy will win. But if the Constitution says that the big guys are supported, their position is supported by the Constitution and laws of the United States and the facts in the case, then he will vote in favor of the big guy.

This is exactly how it should be. Over the Supreme Court of the United States, as you look at that stately edifice, it says, ``Equal justice under the law,'' not that justice will be rendered in favor of the little guy all the time or against the big guy all the time or, conversely, for the big guy all the time and against the little guy. That is the antithesis of equal justice under the law. As a matter of fact, we all recall that Lady Justice wears a blindfold for a very good reason--because justice is about the law, not about persons who are sitting in front of a judge.

Mr. President, second, I am not voting for this confirmation because he turned away clients with legal positions with which my constituents or some of us might disagree. Some of my colleagues have said they will vote against Judge Roberts because they are unsure of his heart. They are saying that his heart may not be pure because

in private law practice he would not turn down clients with positions anathema to liberal special interest groups. Now, although they acknowledge that Judge Roberts has donated his time to clients who, for example, were on the liberal side of a lawsuit over gay rights, they criticize Judge Roberts because at his confirmation hearings he said he would have donated his time to clients on the conservative side of that same issue had they approached him first.

This is perhaps the strangest argument of all against this nominee. My colleagues are going to vote against him because they think it is heartless to take on clients regardless of whether he agreed with them or not? That is the very essence of being a lawyer, a professional, an advocate. Lawyers are somewhat like public accommodations in a sense. Similar to hotels, restaurants, and the like, when lawyers place their shingle out and say, I am willing to entertain cases that people may bring to me, they are supposed to serve anyone who comes through the door, as long as they have an arguable legal position or factual position with which the Court might ultimately agree. As a matter of fact, our adversarial system of justice depends on lawyers not just taking cases with which they perhaps ideologically are inclined to agree but, rather, they are supposed to take the facts and the legal arguments and do the very best they can so that in a clash that plays out in our adversarial system of justice in the court room, the judge can make the best decision based on the best legal arguments and that jurors can decide what the truth is based on this clash of opposing positions.

People are not supposed to be judged by the lawyers. Rather, in our system they are supposed to be judged by a jury of their peers. But if lawyers were constrained or prohibited from representing people with whom they might personally not agree, then they would never have a chance to be judged by a jury of their peers because they would not have a lawyer to take their case so that it could be presented to that impartial conscience of the community.

I wish to ask where this reasoning of my colleagues might lead. There are any number of clients who few people would support politically but who need legal representation in our adversarial system. Criminal defendants are the most obvious example. Do my colleagues plan on punishing a lawyer who did not refuse to represent someone who is accused of a crime? Do they plan to disqualify anyone from service in the Federal judiciary who has ever represented someone accused of a crime? Or do they plan to disqualify only those lawyers who did not shun conservative clients or causes? I do not believe you can tell anything about a person's heart, that is, a legal professional, professional advocate by whom that person has represented as a lawyer. But even more important, I do not think the confirmation process should be about the nominee's heart. I, for one, do not want judges sitting in judgment in a court of law who are going to be guided by their heart and sympathies, rather than the law of the land and the facts as found by the trier of fact. I want judges who will side with the party who has the best argument and whose position is most consistent with established law that we all can recognize and read and understand for ourselves.

Again, Lady Justice is blindfolded for a reason. Justice should not depend on who you are or who you know. It should depend on who has the law on their side.

Third, I am not voting for John Roberts because he will preserve some hypothetical quixotic ideal of balance on the Supreme Court. Some of my colleagues have said they will vote for Judge Roberts because he is not any more conservative than his predecessor, Chief Justice Rehnquist, whom he will be succeeding. But they issued the warning that I started out with: Mr. President, don't you dare nominate someone we disagree with next time or we will use this unconstitutional filibuster. We will break with 200 years of precedent in the Senate and the very premise of our law, which is based on majority rule. We will break with that and we will filibuster in the Senate and prevent your nominee from ever taking the bench if you nominate someone we perceive is more conservative than Sandra Day O'Connor.

My colleagues have said this is important because they want to preserve balance on the Court. Preserving so-called balance on the Court has never been the basis of a Supreme Court confirmation vote. The examples of this are legion. One of the last Supreme Court nominees to win confirmation was Justice Ruth Bader Ginsburg, who replaced Justice Byron White. Justice Ginsburg, I think it is clear, I think we would all agree, was an unabashed liberal and one of the most zealous supporters of abortion rights who has ever been confirmed to the U.S. Supreme Court.

Justice White, nominated by President John F. Kennedy, was fairly conservative by contrast and indeed was one of the dissenters in the celebrated case of Roe v. Wade. Yet Justice Ginsburg, a self-avowed liberal, replaced a moderate to conservative Justice on the Court, and she was confirmed by a vote of 96 to 3. No one argued that Justice Ginsburg should be defeated because she would somehow shift this ideological balance on the Court.

But she is only one example. Justice Clarence Thomas, one of the most conservative members of the Court, was nominated and confirmed to succeed Justice Thurgood Marshall, arguably one of the most liberal.

Chief Justice Burger, President Nixon's antidote to judicial activism, replaced Chief Justice Earl Warren, whose name, in the minds of some, was synonymous with the phrase judicial activism.

Justice Goldberg, who believed the ninth amendment gave the Supreme Court a license to invent new constitutional rights, replaced Justice Frankfurter, the father of judicial restraint.

So it is clear this has never been the way it has been, historically. Nor is there any precedent or any obligation of a President to try to seek ideological balance when nominating someone to the Supreme Court. The reason why is very simple. Elections are supposed to have consequences. The President is entitled to put the people on the Supreme Court who share his values and his judicial philosophy; in this case one who believes the policymaking ought to primarily emanate from the elected representatives of the people in Congress, not life-tenured judges who are unaccountable.

If Presidents were not entitled to change the Supreme Court, then Abraham Lincoln could not have changed the Dred Scott case, and Franklin Delano Roosevelt could not have changed the Lochner Court. I doubt my colleagues who are arguing for this ideological lockstep, or uniformity, would have favored that.

But that brings me to why I am supporting this nominee, and the reasons are actually pretty simple. First, Judge Roberts is simply one of the most qualified individuals ever nominated to serve on the Supreme Court. Indeed, he may very well be the best qualified. We have heard it before. He graduated the top of his class, he clerked for two of the finest judges in the Nation, he served, with great distinction, two Presidents. He has argued 39 cases before the U.S. Supreme Court and is widely regarded as the finest oral advocate before the Court living today.

In only 2 years on the D.C. Circuit Court of Appeals, he has already acquired a reputation as one of the most respected judges in America. Even the New York Times, which has editorialized against this nomination, has conceded that few lawyers in America could compete with Judge Roberts in professional accomplishments.

There was a time not too long ago when a brilliant career such as Judge Roberts' was sufficient to win confirmation to the Supreme Court, when we did not have ideological tests, litmus tests; when we didn't have filibusters that blocked the majority from actually having an up- or-down vote to confirm a nominee.

Whereas Judge Roberts has spent his career representing clients on both sides of every issue, we saw in Justice Ginsburg, whom I mentioned a moment ago, a jurist spending most of her career representing the single client, the American Civil Liberties Union, on one side of these issues. She voiced support for some pretty extreme positions. She

supported taxpayer funding for abortions. She thought there was a constitutional right to polygamy and prostitution. Suffice it to say, her ideas were far outside of the legal, not to mention the political, mainstream of America.

Finally, I am going to vote to confirm this nominee because this judge understands the proper role of an unelected Supreme Court Justice in a democratic Nation.

Mr. President, I ask unanimous consent for an additional 3 minutes.

To repeat, Judge Roberts understands the proper role of an unelected Supreme Court Justice in a democratic Nation. Ours is not a nation where nine judges sit in a marble edifice and decide what is good for us. Nor is it a Nation conceived on the premise that these nine unelected judges should be primarily policymakers. Rather, our notion of justice and law is based on consent of the governed. You can read it in the Declaration of Independence. Obviously, were unelected, lifetime-tenured judges to depart from the text of the Constitution, depart from precedent, and get into a mode of sort of freewheeling ad hoc public policymakers, they would have departed in the extreme from the framework laid down by our Founders and from the framework ensconced in our Constitution.

I will vote to confirm this nominee. I hope my colleagues will do likewise. I hope further that my colleagues, who have already stated their intention to filibuster the next nominee, will wait until the President has in fact named a nominee to succeed Justice Sandra Day O'Connor. It is just possible--it is just possible they will be surprised and they will find the President has, indeed, selected another nominee in the mold of John Roberts, who will be overwhelmingly confirmed as Chief Justice of the United States.

I yield the floor.

Mr. President, tomorrow the Senate will vote on the nomination of John Roberts to be the 17th individual to serve as Chief Justice of the United States. I have put an enormous amount of contemplation and consideration into my vote on this nomination. Some may wonder why this has been such a difficult decision for me. Clearly Judge Roberts is an individual of great accomplishment. He has an outstanding educational background and keen legal skills. He is a thoughtful, decent, modest person, impressively knowledgeable about constitutional law and the Court.

I watched much of the judiciary hearings. I have reviewed briefs and court decisions written by Judge Roberts. And, thanks to his generosity, I met with Judge Roberts for more than an hour in my office last week, talking one on one.

What I did not find in the hearings or in Judge Roberts' writings or in our meeting was a clear indication that Judge Roberts understands the critical role the courts play in protecting the civil rights of Americans and in allowing those who have suffered discrimination to be able to seek recourse and affirm their rights in Federal court. I was seeking some indication that Judge Roberts understands that the issues that come before the high Court cannot always be viewed with a cool, legal dispassion and detachment, but that the Court and its members play a critical role in protecting the powerless in our country.

This is of grave concern to me because the individual who fills this Supreme Court vacancy will have the ability to enhance and strengthen or undermine and weaken the Americans With Disabilities Act.

Judge Roberts' nomination comes at a time when there is a very significant clash occurring between the Supreme Court and Congress over whether Congress has the authority to require the States to comply with antidiscrimination laws. Unfortunately, the law caught at the center of this clash is the Americans With Disabilities Act.

As I have deliberated on this nomination, the first and foremost question in my mind has been this: What kind of Court would the Roberts Court be? Would it be a Court that serves as a refuge of last resort for the powerless in our society? Or, would it be a Court that will continue down a disturbing path seen in the later years of the Rehnquist Court, a path that limits the

ability of Congress to pass legislation that provides meaningful protections to individuals, including the 54 million Americans with disabilities?

Unfortunately, after carefully reviewing the record and talking with Judge Roberts, I am unable to conclude that a Roberts Court would guarantee the rights of the powerless and those with disabilities.

Earlier this year we celebrated the 15th anniversary of passage of the Americans With Disabilities Act. The ADA, as it is known, prohibits discrimination in employment against people with disabilities. It requires that the services and programs of local and State governments be accessible and usable by individuals with disabilities. Since its enactment, the ADA has provided opportunity and access for 54 million Americans with disabilities who, prior to the law's enactment, routinely faced prejudice, discrimination, and exclusion in their everyday lives.

As Members of this body know very well, I was the lead sponsor of the ADA. I championed it because I had seen discrimination against the disabled firsthand, growing up with my brother Frank, who was deaf. During his childhood, my brother was sent halfway across the State to a school for the ``deaf and dumb.'' He was told his career path would be limited because surely someone who is deaf cannot contribute to society. Throughout his life, Frank experienced active discrimination at the hands of both private individuals and government, and this served to limit the choices before him. Frank's experience was by no means unusual, as Congress documented extensively prior to enactment of the ADA. As part of the writing of that bill, we gathered a massive record of blatant discrimination against those with disabilities. We had 25 years of testimony and reports on disability discrimination, 14 congressional hearings, and 63 field hearings by a special congressional task force that were held in the 3 years prior to the passage of the Americans With Disabilities Act. We received boxes loaded with thousands of letters and pieces of testimony gathered in hearings and townhall meetings across the country from people whose lives had been damaged or destroyed by discrimination. We had markups in 5 different committees, had over 300 examples of discrimination by States. I know; I was there. I was the chairman of the Disability Policy Subcommittee.

Yet since enactment of the ADA the Court has repeatedly questioned whether Congress had the constitutional authority to require States to comply with the ADA. Amazingly, it questioned whether Congress adequately documented discrimination. In 2000, the Supreme Court held in a 5-to-4 decision that an experienced nurse at a university hospital--who was demoted after being diagnosed with breast cancer because her supervisor did not like being around sick people--was not covered by the ADA. Why? Because she had the misfortune to work for a State hospital.

In contrast, last year, by a 5-to-4 decision, the Court held that Congress did have the authority to require States to make courthouses accessible.

This year, the Court will look at whether a State is required to make a prison accessible. There is no guarantee that the Court will come to the same result. Instead, we could end up with a crazy patchwork where courthouses are accessible, but maybe libraries are not, perhaps prisons are accessible, but employment offices are not.

When we passed the ADA, we in Congress did not forbid employment discrimination against the disabled unless they worked for the State. We didn't say some services must be accessible. But that is what the Court has been saying. Talk about judicial activism.

I would point out here, in those years when we were developing the Americans With Disabilities Act, my friend Senator Hatch was ranking member on the Judiciary Committee. They had their staffs look to make sure we passed the constitutional tests. Attorney General Dick Thornburgh, a great supporter of the Americans With Disabilities Act, had the Department of Justice look and make sure we were passing constitutional muster. Boyden Gray, in the White House Counsel's Office, looked at it to make sure we passed constitutional muster. Fifteen Ronald Reagan appointees to the National Council on Disability, working with constitutional law experts, looked at the bill to make sure it passed constitutional muster. Yet the Court, by 5-to-4 decisions, is undermining all we did.

As a result, 15 years after passage of the ADA, the rights of those with disabilities still hang in the balance. Those rights will be determined in a very significant way by a potential Roberts Court. As Chief Justice, Mr. Roberts personally will have a major role in determining whether the balance swings for or against people with disabilities. If Judge Roberts lends his voice to those on the Court who believe in the rights of States over the rights of people, individuals with disabilities in this country will face enormous setbacks.

Judge Roberts was asked many questions at his hearing about congressional power, the ADA, and the rights of the disabled. I posed similar questions in our meeting. Judge Roberts chose not to answer those questions in any significant or revealing detail. Without some greater assurance that he would give deference to the policies passed by Congress, without solid assurance that he would be a defender of the ability of the less powerful to go to court and have their rights vindicated, without those assurances, I am left guessing and speculating, and that is not good enough.

Without clear assurances from him personally, I am left only with Judge Roberts' paper record and, quite frankly, it is a record that does not bode well for people seeking to vindicate their rights. In the interests of brevity, let me cite one example from Judge Roberts' tenure with the Department of Justice, the 1982 case of Board of Education v. Rowley. In the Rowley case, a trial court ruled that Federal law required the State to provide a sign language interpreter for an 8-year-old student who was deaf. The Second Circuit Court of Appeals affirmed that decision. The case then went to the Supreme Court and the Department of Justice had to decide whether to support the student and argue in favor of an interpreter, or support the local school board and the State and argue against an interpreter.

In a memo to the Attorney General, Judge Roberts said the lower court decisions amounted to an exercise of judicial activism and the lower courts had inappropriately ``substituted their own judgment of appropriate educational policy.''

This was not the language of a lawyer merely representing the views of a client. This was the language of an attorney in a policymaking position at the Department of Justice, suggesting that the Government should have weighed in against the right of a deaf student to have access to an interpreter under the Education of the Handicapped Act, a predecessor of today's Individuals With Disabilities Education Act. In other words, Judge Roberts thought that this law, the primary Federal law to ensure that students with disabilities have access to the same educational opportunities as all other students, should be interpreted narrowly rather than broadly.

That is not the quality I am looking for in a Chief Justice. I want a Chief Justice who brings a passion for justice to the law; who does not lose sight of the real people whose lives and livelihoods are at stake in the Court's decisions. Some supporters of Judge Roberts have argued that the Rowley case was more than two decades ago and Judge Roberts' views on statutory interpretation and on the ability of individuals to protect their rights through the courts may have evolved since then. But how are we in this body to know that, particularly when the White House has failed to provide us with all requested and directly relevant documents?

Of greatest interest to me are the decisionmaking memoranda written by Judge Roberts during his tenure as Principal Deputy Solicitor General. Again, in his role as Principal Deputy Solicitor General--a position sometimes referred to as a ``political deputy'' because it is a political appointment--Judge Roberts was not merely representing a client but was involved in crafting the Department's legal positions in some of the most important cases in recent years.

During his tenure as Principal Deputy, Judge Roberts argued before the

court that individuals shouldn't be allowed to go to court to enforce their rights under the Medicaid statute, that children shouldn't have access to courts to enforce their rights under the Adoption Assistance and Child Welfare Act, and that courts should take a restrictive view of remedies available under title IX and other civil rights laws.

Given the decision of the White House to withhold these documents from the Senate, I am forced to draw my conclusions on what I do know.

Before I conclude my remarks, I would like to describe an example of one of the ``real people'' I referred to earlier, a woman by the name of Beverly Jones. Ms. Jones, who testified before the Senate Judiciary Committee on Judge Roberts' nomination, has been using a wheelchair since a 1984 traffic accident in 1990, the year we passed ADA. She completed court reporting school and set out to work as a courtroom stenographer in order to support her family. But what she found as she traveled throughout the State of Tennessee was she couldn't get the jobs in a great majority of Tennessee's courthouses. She was forced to choose between asking complete strangers to carry her into the courthouse or into inaccessible rest rooms or simply turn down employment opportunities. That is an unacceptable choice for a single mother supporting two kids.

Ms. Jones testified to the committee that she spoke to Federal, State, and local officials about the problem of inaccessible courtrooms, but her entreaties were met with indifference, until she filed suit. I would like to quote from Ms. Jones' testimony about her experience because I think it vividly illustrates what is at stake.

She said:

The door that I thought had been opened [with passage of

the ADA] was still closed and my freedom to live my dream was

still a dream, and turning into a nightmare. Nobody took

either me or the law seriously until I and others brought a

lawsuit.

That is what is at stake today--the right of 64 million Americans with disabilities to live their dreams, the right of the powerless in our society, the disenfranchised, to turn to the courts to take them seriously.

Unfortunately, I am not yet persuaded that a Roberts Court would protect these rights.

For this reason, I will be voting no on this nomination.

Certainly, I bear no personal animosity whatsoever toward Judge Roberts. Within this body, there are many people on the other side of the aisle whom I respect, admire, and value as friends. But I don't often vote with them because I have a different viewpoint on many issues. As I said, in our personal meeting, I found Judge Roberts to be a very decent, modest individual.

I hope the future will prove me wrong about Judge Roberts. I hope he proves to be a Justice who recognizes that discrimination in this country occurs in many areas and that Congress has both the authority and the duty to remedy it.

Judge Roberts will have an immediate opportunity to do just that. In this upcoming term, the Supreme Court will hear arguments in a case that will once again examine the question of whether Congress had the authority to order States to make public facilities accessible to people with disabilities. Knowing this, during our meeting I tried to convey to Judge Roberts how discrimination against people with disabilities was deeply ingrained across the decades and across the centuries prior to passage of the Americans with Disabilities Act. I talked with him in detail about how prior to passage of ADA people were institutionalized, segregated, taken from their families, taken from their communities, excluded from schools, excluded from educational opportunities, excluded from employment opportunities, excluded from all aspects of daily life, shopping, going to the movies, playing golf, on and on, simply because of a disability. I explained how people with disabilities were excluded in the same way African Americans were excluded prior to the passage of the Civil Rights Act.

In closing, let me quote from Thurgood Marshall in the Cleburne case, City of Cleburne v. Texas. Here is what Justice Thurgood Marshall had to say. Here is a sense of real injustice and that something needs to be done about it. This is what Justice Marshall said:

The mentally retarded have been subject to a ``lengthy and

tragic history,'' of segregation and discrimination that can

only be called grotesque. . . . A regime of state-mandated

segregation and degradation soon emerged that in its

virulence and bigotry rivaled, and indeed paralleled, the

worse excesses of Jim Crow. Massive custodial institutions

were built to warehouse the retarded for life; the aim was to

halt reproduction of the retarded and ``nearly extinguish

their race.'' Retarded children were categorically excluded

from public schools, based on the false stereotype that all

were ineducable and on the purposed need to protected

nonretarded children from them. State laws deemed the

retarded ``unfit for citizenship.''

That has been the experience for the last 200 years or more in this country. We stepped in to remedy that with the Americans with Disabilities Act.

I hope Judge Roberts keeps these things uppermost in his mind and in his heart. Only time will tell.

I yield the floor.